Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate a WJI insertion.
The case: Village of Slinger v. Polk Properties
Majority: Justice Rebecca Grassl Bradley (22 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Patience Roggensack
Concurrence: Justice Annette Ziegler (10 pages)
Justice Brian Hagedorn did not participate
Polk Properties, LLC and its sole member, Donald J. Thoma (collectively, "Polk"), seek review of the court of appeals decision, which affirmed the circuit court's order requiring Polk to pay forfeitures for zoning violations, damages for the Village of Slinger's lost property tax revenue, and attorney's fees. Whether these forfeitures, damages, and fees can be sustained depends upon whether Polk abandoned the legal nonconforming use of the property after its zoning classification was changed from agricultural to residential....
It is undisputed that the farmer who farmed the land before Polk acquired it continued to cut and remove vegetation on the property after Polk purchased it and after the rezoning. Because the agricultural use continued without cessation, Polk remained in compliance with the applicable zoning code provisions and Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.
Polk's property comprises 82 acres of rural land located in the Village of Slinger, which the Melius family operated as a farm before Polk purchased the parcel in 2004. Polk worked with the Village of Slinger on his proposed plan to convert the farmland to a residential subdivision known as Pleasant Farm Estates, which would consist of three phases of development over the course of several years. In February 2007, the Village of Slinger approved Polk's planned residential subdivision development. Installation of the infrastructure for the development began in June 2007 and was completed in August 2008. Two of the lots in phase one of the project were sold and residential homes were constructed on those lots. Sales of additional lots stalled, however, due to the 2008 economic recession and the collapse of the real estate market.
Throughout the entire development project, Ronald Melius continued to farm the property by cutting and removing vegetation from the land. This continuous farming formed the basis for the Village of Slinger's lawsuit against Polk, in which the Village of Slinger sought an injunction from the circuit court ordering Polk to stop the agricultural use of the property. Melius' continued farming of the property is the particular conduct that led the circuit court to conclude Polk violated the residential zoning ordinance as well as the circuit court's order, for which that court found Polk in contempt....Ultimately, the circuit court ordered Polk Properties, LLC to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures, as well as $48,953.26 in additional real estate taxes covering tax years 2009 to 2013. The circuit court additionally ordered Thoma to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures as well as $12,017 for additional real estate taxes covering tax years 2009 to 2013.
Polk appealed the circuit court's orders and the court of appeals affirmed. Relying on an opinion from the Rhode Island Supreme Court, the court of appeals decided that Polk had abandoned its legal nonconforming use....
Polk maintains that the cutting and removing of the vegetation on the property was not abandoned after purchase, but in fact occurred continuously as part of the maintenance of the property. The Village of Slinger agrees that the farming occurred continuously, but argues that specific actions Polk took to convert the property into a residential subdivision constituted abandonment. Specifically, the Village of Slinger pinpoints Polk's request for the zoning change, the Subdivision Development Agreement for Pleasant Farm Estates ("the Development Agreement"), which limited the property to residential use, and the Declaration of Covenants, Conditions and Restrictions of Pleasant Farm Estates ("the Declaration") with residential restrictions executed and recorded by Polk.
The court of appeals agreed that these specific acts by Polk constituted legal abandonment regardless of any farming still taking place on the property. Rather than relying on Wisconsin law, however, the court of appeals rested its determination on a single foreign case at odds with our own jurisprudence. Wisconsin law requires two elements for abandonment of a legal nonconforming use: (1) actual cessation of the nonconforming use and (2) an intent to abandon the nonconforming use. Although Polk's specific acts may signify an intent to abandon the nonconforming use, the undisputed fact that Polk continued farming on the property confirms there was no actual cessation of the nonconforming use....
For nearly a century, Wisconsin has required actual cessation of a legal nonconforming use together with an intent to stop it as prerequisites to abandonment. We have even rejected a "mere suspension" of the nonconforming use in considering whether the actual cessation element had been met. The law requires actual cessation in order to conclude that a property owner has abandoned the legal nonconforming use. The record in this case overwhelmingly demonstrates that Polk did not actually stop farming this property, despite the Village of Slinger's repeated and persistent attempts to end this use....
The Village of Slinger has not presented nor have we located any case suggesting that merely reducing the nonconforming use constitutes actual cessation....
We conclude that Polk did not abandon the lawful nonconforming use of the property because farming occurred continuously on the property before, during, and after the rezoning. Polk never ceased cutting and removing vegetation on the property. Because this nonconforming use continued without cessation, Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.
While I agree with the majority's conclusion that Polk did not abandon its nonconforming use of the property, I write separately because the majority could be read to be unnecessarily breathing life back into a doctrine that the legislature abrogated over 80 years ago.
In 1931, we originally adopted the two-part test for abandonment, which required intent to abandon and actual cessation of use....
However, the legislature later abandoned this approach....the legislature changed the statutory language regarding discontinuance to its current form: "[i]f such nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance...."
(T)he doctrine of voluntary abandonment is inapplicable to cases where either the statute or municipal ordinance contains a definite time limit. In the case at bar, both the statute and municipal ordinance contain the language "discontinued for a period of 12 months...."
Applying the proper test here, it is clear that Polk never ceased agricultural use of the property for a 12-month period. As I described above, both the statute and the ordinance have a 12-month definite time period. Accordingly, to have lost the right to use the property for agricultural purposes, Polk must have ceased using the property for agricultural purposes for a period of 12 months.
Polk never ceased its agricultural use for a period of 12 months. Indeed, Polk never ceased its agricultural use for a single day....
While I agree with the majority that Polk did not abandon its nonconforming use, I would make clear that the voluntary abandonment doctrine is inapplicable here. I would rely on the objective test that the legislature set forth in the statute – whether the property owner actually ceased use for the legislatively definite time limit. Because Polk never ceased its agricultural use of the property for even a day, let alone the 12-month time limit, I conclude that Polk did not abandon its nonconforming, agricultural use. As a result, I do not join the majority opinion and instead respectfully concur....
Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate a WJI insertion.
The case: Tavern League of Wisconsin v. Andrea Palm
Majority: Justice Patience Roggensack (18 pages), joined by Justices Rebecca Grassl Bradley and Annette Ziegler
Concurrence: Justice Brian Hagedorn (2 pages)
Dissent: Justice Ann Walsh Bradley (15 pages), joined by Justices Rebecca Dallet and Jill Karofsky
The Department of Health Services (DHS) Secretary-designee, Andrea Palm, issued Emergency Order 3 on October 6, 2020, as a response to the COVID-19 pandemic. Emergency Order 3 limited the size of indoor public gatherings either to 25 percent of a facility's permitted capacity or, if no general capacity limit was prescribed, to 10 people.
We conclude that Emergency Order 3 meets the definition of a rule, as we recently explained in Wisconsin Legislature v. Palm. Therefore, Emergency Order 3 should have been promulgated according to rulemaking procedures. Because it was not, Emergency Order 3 was not validly enacted and was unenforceable. Accordingly, we affirm the decision of the court of appeals.
On October 6, 2020, as her second response to COVID-19 cases in Wisconsin, Palm issued Emergency Order 3. Emergency Order 3 limited the number of people who could be present at indoor, public gatherings....
Emergency Order 3 stated in part:
2. Public gatherings limited.
a. Public gatherings are limited to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality.
b. For indoor spaces without an occupancy limit for the room or building that is established by the local municipality, such as a private residence, public gatherings are limited to no more than 10 people.
The order listed entities who were exempt from its public gathering limits: childcare settings, schools and universities, health care and human services operations, Tribal nations, governmental and public infrastructure operations (including food distributors), places of religious worship, political rallies, and other gatherings protected by the First Amendment. Emergency Order 3 was enforceable by civil forfeiture, and it was to be effective until November 6, 2020.
One week after DHS issued Emergency Order 3, the Tavern League of Wisconsin, Inc., the Sawyer County Tavern League, Inc., and the Flambeau Forest Inn, LLC (collectively the "Tavern League plaintiffs") initiated this lawsuit in Sawyer County circuit court. The Tavern League plaintiffs alleged that Emergency Order 3 was "a general order of general application . . . in other words, it is a rule." The Tavern League plaintiffs further alleged that DHS did not undertake proper rulemaking procedures under ch. 227 and as required by our decision in Palm....
The circuit court, the Honorable John M. Yackel originally presiding, granted the Tavern League plaintiffs' motion for an ex parte temporary injunction. Judge Yackel did not provide reasoning for his decision....
(Later) the circuit court, the Honorable James C. Babler now presiding, granted The Mix Up's motion to intervene but vacated Judge Yackel's ex parte order and denied The Mix Up's motion for temporary injunctive relief....
The court of appeals summarily reversed the circuit court....
The Mix Up urges us to dismiss the review that we granted to DHS because the issues are now moot. The Mix Up argues that, because Emergency Order 3 expired on November 6, 2020, there is not a live controversy....
The Mix Up is correct that the issue in this case is moot; Emergency Order 3 expired on November 6, 2020. However, we conclude that this case satisfies several of our mootness exceptions set forth above, one of which we address below....
Emergency Order 3 impacts every person in Wisconsin, in one way or another, and it is open to all who come into Wisconsin during its operation. It charts a course that the Secretary-designee will repeat with future orders. Accordingly, it is important to confirm, once again, that Emergency Order 3 is beyond the power that the legislature delegated to the Secretary-designee. This satisfies the great public importance mootness exception. Accordingly, we decline to dismiss our review; instead, we turn to the merits....
(In Palm) We...explained that agency action that exhibits all of the following criteria meets the definition of a rule: "'(1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency.'"
The court of appeals concluded that Emergency Order 3 was a rule because it was issued by DHS purportedly pursuant to its authority under Wis. Stat. § 252.02(3), it imposed statewide restrictions on public gatherings and it made subjective policy decisions regarding which entities were subject to its mandate and which entities were exempt. Because Emergency Order 3 was not promulgated as a rule the court of appeals concluded that it was invalid and unenforceable. We agree. On its face, Emergency Order 3 meets the definition of a rule and DHS was required to comply with rulemaking procedures in ch. 227.
DHS contends that Emergency Order 3 was not a rule because it issued Emergency Order 3 under Wis. Stat. § 252.02(3)6 rather than the more general statutory subsections discussed at length in Palm, namely §§ 252.02(4) and (6)....Additionally, DHS argues that § 252.02(3) "confer[s] well-delineated statutory power" and therefore does not require rulemaking to enforce.
This argument reads Palm too narrowly and misses Palm's overarching holding....(W)hether DHS issued Emergency Order 3 under a different statutory subsection than those Palm focused on is of no import if DHS's action meets the definition of a rule....
Emergency Order 3 is a general order generally applied, and therefore, it meets the facial definition of a rule...explained further in Palm....
Emergency Order 3 satisfied all five criteria that define a rule and, because it was not promulgated through rulemaking procedures, it was not valid or enforceable.
Some details have changed, but this case arises because Palm issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule. Palm hopes to achieve a different outcome this time by seizing on some of the vulnerabilities in last term's decision. To be sure, the court's rationale in Palm was, in some respects, incomplete. My objections to the court's legal analysis were no secret. But creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making.
The reach and nature of stare decisis——a Latin phrase that means "to stand by things decided"——is the subject of much debate.1 But if stare decisis is to have any import at all in our legal system, it surely must apply when a court has told a specific party that certain conduct is unlawful, and that party does the very same thing again under the same circumstances. That is what we have here. No further clarification of our opinion in Palm is needed; its application is plain. We held that Palm's statewide order limiting public gatherings (along with a number of other restrictions) meets the statutory definition of a rule, and must be promulgated as a rule to have legal effect. Respect for this court and its authority compels me to stand by that decision today.
By Gretchen Schuldt
The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week.
Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information.
Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it.
Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack.
Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial."
Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence.
The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa.
In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote.
(Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.)
The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.
Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.
Majority: Justice Brian Hagedorn (19 pp.)
Concurrence: Justice Rebecca Grassl Bradley (10 pp.), joined by Justice Annette Ziegler
Concurrence: Justice Rebecca Dallet (7 pp.), joined by Justices Ann Walsh Bradley and Jill Karofsky.
The full opinion is here.
While this court need not always follow federal constitutional interpretation in lockstep, we conclude that neither the Wisconsin Constitution nor the purposes underlying the Miranda warnings support a judicially-created rule treating all incarcerated individuals as "in custody." In the alternative, (Brian L) Halverson contends that his incriminating statements should be suppressed because he was "in custody" under the traditional Miranda custody test. We disagree and conclude that Halverson was not in custody for purposes of Miranda.
The question in this case concerns the scope of "custody" for purposes of Miranda. The defendant, Brian L. Halverson, was an inmate in jail when he returned a call from an officer regarding an incident at Halverson's prior correctional institution. During the short call, the officer asked Halverson about an inmate's missing property, and Halverson admitted that he took and destroyed the property. No Miranda warnings were given. Halverson argues that his statements must be suppressed because he was in custody as an inmate in jail, and therefore he also was most assuredly "in custody" for purposes of Miranda.
In a 1999 case, this court agreed. Relying on United States Supreme Court precedent, we held "that a person who is incarcerated is per se in custody for purposes of Miranda." In 2012, however, the United States Supreme Court clarified this is not what federal law requires. In Howes v. Fields, the Court concluded that the Constitution contains no such per se rule. The Court emphasized that "custody" for purposes of Miranda is a term of art; it is not consonant with the inability to leave or with incarceration generally. Whether a suspect was "in custody" depends on an inquiry of the totality of the circumstances, looking to the degree of restraint and coercive nature of the interrogation....
The circuit court relied on (an officer's) uncontested testimony as factual background, but it granted Halverson's motion to suppress. The circuit court concluded it was bound to apply Armstrong's per se rule that incarcerated individuals are in custody for Miranda purposes....
The State appealed and the court of appeals reversed. The court of appeals held that the per se rule adopted by this court in Armstrong was effectively overruled by the United States Supreme Court in Howes, and it declined to readopt the per se rule under the Wisconsin Constitution. It further concluded that Halverson was not in custody for purposes of Miranda under the totality of the circumstances. We granted Halverson's petition for review and agree with the court of appeals.
The issues in this case center on the nature of "custody" for purposes of determining whether Miranda warnings must be administered. Halverson contends he was in custody for two independent reasons. First, Halverson argues all incarcerated individuals should be deemed "in custody" for purposes of Miranda solely due to their incarceration. Although the United States Supreme Court rejected a per se rule to this effect, he asks us to adopt this approach under the Wisconsin Constitution. Second, if we decline that request (as we do), Halverson asserts the totality of the circumstances nonetheless demonstrates he was in custody for purposes of Miranda....
Miranda is a judicially instituted effort to protect against self-incrimination by creating an unrebuttable legal presumption of coercion whenever the warnings are not administered....
The Miranda custody analysis proceeds in two steps. First, courts "ascertain whether, in light of 'the objective circumstances of the interrogation,' a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" This requires examining the totality of the circumstances, including relevant factors such as "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning." The inability to leave and terminate the conversation, however, is not enough on its own to trigger the need for Miranda warnings....Instead, courts proceed to the second step in the custody analysis where they ask "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda."
(In Howe) the (U.S. Supreme) Court expressly rejected a categorical rule that questioning an inmate is custodial. Instead it reviewed and re-emphasized the two-step, totality-of-the-circumstances custody inquiry established in prior cases. Using that analysis, it reasoned that incarcerated individuals are not automatically in custody for purposes of Miranda. The Court offered three reasons to support its conclusion – all centering on whether the environment necessarily contains the same coercive pressures that animated the Court's holding in Miranda. First, questioning an incarcerated person does not involve the same kind of shock accompanying someone arrested in the first instance, and therefore the coercive pressures are substantially diminished. Second, incarcerated individuals have far less pressure to speak with the hope of securing release. They know that when the questioning is finished, they will remain incarcerated. Finally, incarcerated individuals know that their questioners "probably lack authority to affect the duration of [their] sentence." Therefore, the Court held that incarceration alone does not necessarily implicate the same anti-coercion interests that motivated the Court's prophylactic efforts in Miranda.
In this case, the court of appeals correctly deduced that it was bound to follow the United States Supreme Court's decision in Howes rather than our earlier decision in Armstrong....
Halverson recognizes that Miranda warnings are a prophylactic tool fashioned to protect the privilege against self-incrimination, a right independently protected in both constitutions. Halverson therefore asks this court to create an expanded prophylactic to protect a person's rights under the Wisconsin Constitution....
We have generally interpreted Article I, Section 8 (of the Wisconsin Constitution) consistent with the protections afforded by the Fifth Amendment. Halverson provides no textual or historical basis to suggest any meaningful difference between the two provisions meriting an expanded judicially-created prophylactic rule. Nor do we see any basis in the Wisconsin Constitution for Halverson's request.
Instead, Halverson focuses chiefly on the argument that incarceration inherently creates the kind of custodial circumstances meriting Miranda warnings. We agree, however, with the Supreme Court's determination in Howes that a per se rule does not serve the anti-coercion purposes of Miranda....Halverson's circumstances do not even satisfy the standard requirements for custody under Miranda's framework. Further, no facts in Halverson's case indicate coercion or anything close to it. And that is the whole point of requiring Miranda warnings in the first place.... This was why the United States Supreme Court rejected the per se rule in Howes, and Halverson offers no strong reasons to diverge from this rationale.
Halverson has an alternative argument——namely, that he was "in custody" for purposes of Miranda under the prevailing two-step inquiry examining the totality of the circumstances....
For many of the same reasons, proceeding to the second step of the custody analysis, we conclude Halverson's environment did not "present the same inherently coercive pressures as the type of station house questioning at issue in Miranda." He spoke to Officer (Matthew) Danielson over the phone in the jail's community room where he was alone, without physical restraints, and could sit or stand at will. The interview lasted less than five minutes, and during that time Officer Danielson kept his tone calm. These circumstances are nowhere close to the kind of coercive pressures of station-house questioning that sparked the Supreme Court's holding in Miranda.
I join the majority opinion in full. I write separately to address the petitioner's reliance on State v. Knapp. Because the Knapp court's interpretation of Article I, Section 8 of the Wisconsin Constitution lacks any mooring in text or history, this court should restore the original meaning of this constitutional provision....
The Wisconsin Supreme Court held that the Wisconsin Constitution's analog to the Fifth Amendment – Article I, Section 8 – affords greater protections than the United States Constitution. In particular...(the) second Knapp court held that, "[w]here physical evidence is obtained as the direct result of an intentional Miranda violation, . . . [Article I, Section 8 of the Wisconsin Constitution] requires that the evidence must be suppressed...." The Knapp II court invented the sanction of suppressing evidence because the officer's "conduct at issue was particularly repugnant and require[d] deterrence." The Knapp II court also invoked the "preservation of judicial integrity" as a basis for contriving a different meaning for Article I, Section 8 than the United States Supreme Court gives the nearly identical Fifth Amendment....
Halverson's reliance on that case to request an expanded prophylactic to protect the privilege against self-incrimination indicates it is time for this court to revisit Knapp's holding....Restoring the proper method of interpreting Article I, Section 8 is imperative if this court takes seriously its oath to uphold the Wisconsin Constitution. The question for this court is not whether the Wisconsin Constitution should afford greater protections, but whether it "actually affords greater protection[s]...."
"Because Article I, Section 8 does not require suppression of evidence obtained as the result of voluntary statements made by a criminal suspect from whom the reading of Miranda rights was withheld, only a constitutional amendment could create this remedy. The court in Knapp II acted beyond its authority in devising it. Its holding should be overturned. " – Justice Rebecca Grassl Bradley
By Gretchen Schuldt
Did the state misrepresent data it used to argue that convicted felons should never be allowed to own guns?
State Supreme Court Justice Brian Hagedorn said yes, and a WJI analysis suggests the state's presentation was misleading, at best.
It is unclear, though, that having more accurate data would have changed the court's ruling in State v. Roundtree upholding the gun possession ban law that courts had also previously upheld.
Assistant State Attorney General Sarah Burgundy and Attorney General Josh Kaul contended in a brief that a Department of Corrections study showed that "Public-order offenders had a significant rate of recidivating with violent crimes. For example, based on data from prisoners released in 2011 for public order offenses, 21.4% recidivated with a violent offense..."
WJI, based on the data contained in the report, determined that 6% of public-order offenders recidivated with violent crimes.
Reached by email for comment, Burgundy simply referred WJI to the DOC study.
Public-order offenses, the study said, included non-property, non-violent crimes such as fifth- or sixth-offense drunk driving, felony failure to pay child support, possession of a firearm by a felon, and felony bail jumping.
The appellant in the gun case, Leevan Roundtree, was convicted in 2003 of felony failure to pay child support and was placed on probation, which he completed; in 2015, police found a gun under his mattress, and he was convicted of felon in possession of a gun and sentenced to 18 months in prison and 18 months of extended supervision.
Roundtree argued unsuccessfully that the gun ban was unconstitutional when applied to non-violent offenders like him.
DOC defined recidivism in its report as "Following an episode of incarceration with the Wisconsin DOC, to commit a criminal offense that results in a new conviction and sentence to Wisconsin DOC custody or supervision."
Burgundy and Kaul, in their brief, also said the study's data showed that "the 21.4% of public-order offenders recidivating with a violent crime was higher than that of property offenders (16%) and drug offenders (17.9%)," they wrote. "And it was just seven percentage points lower than the rate of violent offenders (28.3%).
WJI determined that 6.6% of property offenders, 5.5% of drug offenders, and 7.7% of violent offenders recidivated with violent crimes.
The DOC study did not measure the released offenders who recidivated with violent crimes, as the brief suggested. It measured instead the share of recidivists who committed such crimes, as Hagedorn said in his dissent.
The state's brief did not make clear that the percentages it cited so prominently represented a percentages of percentages.
Justice Ann Walsh Bradley cited the state's figures in the majority opinion upholding the gun possession ban.
"This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence," Walsh Bradley wrote.
Hagedorn, in dissent, disagreed.
"That's simply not what the study says, and it is an egregious error in light of its almost singular prominence in the State's effort to prove the requisite connection," Hagedorn wrote in a dissent
"It should be obvious, then, that this (21.4%) statistic offers no assistance in establishing the relationship between past crime and a person's risk to commit gun-related violent crime in the future, which is the core inquiry of the intermediate scrutiny analysis," he said.
Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue.
Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages)
The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him.
Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm....
We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny.
Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence.....
In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm.
Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen."
The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision.
Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications....
The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property."
But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense.
Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence." The legislature did not... create a hierarchy of felonies, and neither will this court.
Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here.
Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence."
Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is.
The State Supreme Court will hold a public hearing at 9:30 a.m. Jan. 14 to hear comments about a rule proposed by the Wisconsin Institute for Law and Liberty that would allow the court to slam the door on public participation in the redistricting process. As many as 2,000 or more comments opposing the measure were submitted to the court. A summary of the proposal is here:
By Gretchen Schuldt
Timing is everything.
The Trump campaign's decision to wait until after the Nov. 3 election to complain about Wisconsin election procedures that had been in effect for years played a big role in dooming its lawsuit in the State Supreme Court.
The court, in a 4-3 decision, upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.
Team Trump cited four grounds for challenging ballots in Dane and Milwaukee counties, and three of them were struck down under the doctrine of laches, which means there was an undue delay in asserting a legal right. In other words, "you snooze, you lose." (We discussed Trump's fourth issue, that the ballots of people declaring themselves "indefinitely confined" should be tossed, here.)
Justice Brian Hagedorn, writing for the majority, made it clear:
The Campaign's delay in raising these issues was unreasonable in the extreme, and the resulting prejudice to the election officials, other candidates, voters of the affected counties, and to voters statewide, is obvious and immense. Laches is more than appropriate here; the Campaign is not entitled to the relief it seeks....
The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied. Election officials in Dane and Milwaukee Counties reasonably relied on the advice of Wisconsin's statewide elections agency and acted upon it. Voters reasonably conformed their conduct to the voting policies communicated by their election officials. Rather than raise its challenges in the weeks, months, or even years prior, the Campaign waited until after the votes were cast. Such delay in light of these specific challenges is unreasonable.
Hagedorn obviously recognized the importance of the timeliness issue – he cited 20 relevant cases. His opinion was joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky.
The three allegations and edited responses from the court's decision are below.
1) All Dane and Milwaukee County in-person absentee ballots votes were cast illegally without an application because, it said, the application form did not meet statutory requirements.
But both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency. This form, now known as EL-122, is entitled "Official No. Absentee Ballot Application/Certification." It was created in 2010 in an effort to streamline paperwork following the 2008 election, and has been available and in use ever since....
The Campaign argues this "application" is not an application, or that municipal clerks do not give this form to voters before distributing the ballot, in contravention of the statutes. Regardless of the practice used, the Campaign would like to apply its challenge to the sufficiency of EL-122 to strike 170,140 votes in just two counties – despite the form's use in municipalities throughout the state. Waiting until after an election to challenge the sufficiency of a form application in use statewide for at least a decade is plainly unreasonable.
2) All Dane County / Milwaukee County absentee ballots with witness address information added by the municipal clerks should be tossed.
The process of handling missing witness information is not new; election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016. It has been relied on in 11 statewide elections since, including in the 2016 presidential election when President Trump was victorious in Wisconsin. The Campaign nonetheless now seeks to strike ballots counted in accordance with that guidance in Milwaukee and Dane Counties, but not those counted in other counties that followed the same guidance. The Campaign offers no reason for waiting years to challenge this approach, much less after this election. None exists.
3) Ballots cast at Dane County's "Democracy in the Park" events were illegitimate.
The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature's The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature's concerns were widely publicized, the Campaign never challenged these events, nor did any other tribunal determine they were unlawful.
The Campaign now asks us to determine that all 17,271 absentee ballots collected during the "Democracy in the Park" events were illegally cast. Once again, when the events were announced, the Campaign could have challenged its legality. It did not. Instead, the Campaign waited until after the election — after municipal officials, the other candidates, and thousands of voters relied on the representations of their election officials that these events complied with the law. The Campaign offers no justification for this delay; it is patently unreasonable.
His dissenting colleagues took aim at his reasoning. Chief Justice Patience Roggensack said the majority justices lacked courage; Justice Rebecca Grassl Bradley said the majority was uninterested in protecting the integrity of the election; Justice Annette Ziegler said expecting challenges before an election was "absurd."
By Gretchen Schuldt
It was a 4-3 squeaker in the State Supreme Court this week as it upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.
The full document is chock-full of dissents and concurrences – the entire thing is 81 pages long and long, and yes, there is a bit of the snark we have come to expect from Justice Rebecca Grassl Bradley.
We are dissecting the decision, trying to make it a bit easier for non-lawyers to follow by arranging it in some sort of logical order, grouping excerpts from the main decision, written by Justice Brian Hagedorn, with excerpts from the relevant dissents and concurrences.
We also aiming for the major points, and don't plan to replicate every word in the decision.
Our introduction to the decision is from Hagedorn, who summarized it nicely in his majority opinion which was joined by Dallet, Walsh Bradley, and Justice Jill Karofsky.
The (Trump) Campaign focuses its objections on four different categories of ballots – each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast.
A big theme for the justices was whether Trump's complaints were filed in a timely manner, and that theme ran through much of the justices' writings.
1. Indefinitely confined
This was definitely the least contentious issue the justices dealt with.
State law allows voters to declare themselves indefinitely confined if they meet legal requirements. This gives them the ability to avoid the requirement to present a photo ID to get an absentee ballot.
The Dane and Milwaukee County clerks in March, in Facebook posts, said any potential voter could declare indefinite confinement because of the pandemic and Gov. Tony Evers' "Safer-at-Home" which was in effect at the time. Within a week, though, the Supreme Court said the Dane/Milwaukee County advice was erroneous. and the county clerks modified their postings.
Here is what Hagedorn, delivering a bench slap to Team Trump, said in the majority opinion.
The (Trump) Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 28,000 votes. The Campaign's request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit.
Roggensack, in a dissent joined by Grassl Bradley and Ziegler, was the only other justice to directly address the issue, and she did so only briefly.
In the pending matter, we do not have sufficient information about the 28,395 absentee voters who claimed this status in Milwaukee and Dane counties to determine whether they lawfully asserted that they were indefinitely confined prior to receiving an absentee ballot. Therefore, I go no further in addressing this contention. Next: Timeliness
Updated Dec. 14, 2020 to correct the number of pages in the Fair Maps Coalition submission.
By Gretchen Schuldt
Almost 2,000 additional comments opposing a proposal to give the State Supreme Court power to draw state redistricting maps were made public in the days following the Nov. 30 comment deadline.
Negative comments came from representatives of Gov. Tony Evers; a group of nine law professors; three election scholars; two former state senators; and 1,932 various Wisconsin residents – the last in a 712-page compilation of comments from the Fair Maps Coalition. All of the submissions can be found here.
The proposal, filed with the Supreme Court by the Wisconsin Institute for Law and Liberty and former State Rep. Scott Jensen, seeks to change the way redistricting disputes are handled by the courts. WILL is a conservative law firm.
Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.
The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.
Assistant Attorneys General Anthony D. Russomanno and Brian P. Keenan, on behalf of Evers, said Jensen and WILL are asking the Supreme Court to adopt rules that conflict with the court's traditional role in original actions.
"And they do so in the context of especially complex trial court litigation, without meaningfully addressing the core factual and practical issues that will arise," they wrote. "Further, the proposal codifies court involvement in a political process and does so before that process can even begin."
"We caution against the use of judicial rulemaking to grant jurisdiction to the Wisconsin Supreme Court over an original action that requires extensive fact-finding, is overtly political, and for which there are adequate alternative forums for resolution in the first instance," wrote the nine law professors "We do not challenge this Court’s authority to adopt rules on original jurisdiction or to hear the types of cases described in the petition. Instead, we suggest that this Court exercise its discretion to deny the petition..."
The nine were Steven G. Calabresi, Zachary D. Clopton, James E. Pfander, and Martin H. Redish – Northwestern Pritzker School of Law; Maureen Carroll – University of Michigan Law School; Michael C. Dorf – Cornell Law School; Atiba R. Ellis and Edward A. Fallone – Marquette University Law School; and David S. Schwartz – University of Wisconsin Law School.
Three other lawyers, who are election scholars, noted that the Supreme Court spent years considering redistricting issues before it declined in 2009 to adopt court rules for redistricting disputes.
The Jensen / WILL submissions do not mention the court's earlier consideration, wrote the experts, Justin Levitt, of the Loyola Law School; Nicholas Stephanopoulos, of Harvard Law School; and Robert Yablon, of UW Law School.
"That is a bewildering omission," they wrote. "To overlook the relevant history is to miss hugely important lessons about the challenges of rulemaking in this area."
They continued: "When this court last considered the issue, two overarching concerns drove its decision not to act: first, that adopting rules would encourage redistricting disputes to be resolved through litigation in this court rather than through the political process; and second, that inviting politically fraught redistricting litigation would threaten the court’s institutional integrity. On each of these scores, this proposed rule is far worse than the proposal that the court previously rejected."
Former State Senators Dale Schultz, a Republican, and Tim Cullen, a Democrat, submitted joint comments opposing the proposal.
"We...know that in times of increased political division, it is unlikely the Legislature will accomplish this important work if it knows the State Supreme Court is waiting, willing to take the issue out of their hands," they wrote. "We ask you to respect the Legislature as a coequal branch of government, and not adopt this rule that would prematurely involve the court in a political question."
A (very) small sampling of the comments from 1,932 individuals and compiled by the Fair Maps Coalition is below.
"If this rule change is to take place, it will further limit the ability of the public to provide input on the process. I feel all stakeholders, not just party representatives, should continue to have an opportunity to influence this process. The rule change request is clearly politically motivated, and so should be denied in favor of the current process that uses an independent, non elected federal judge." – Aaron Day, Green Bay
"This will result in harmfully politicizing the court, excluding nonpartisan groups from full participation. This rule also provides insufficient transparency measures. Transparency is an important part of all branches of government in our democracy." – Agnes Welsch, Menomonie
"I oppose the WI Supreme Ct being allowed to take jurisdiction on redistricting matters. All parties should be allowed to plead their case about redistricting matters, not just political parties. Also, allowing the WI Supreme Ct to simply disregard the proposed rules and come up with their own, if they wish to, is unfair and improper and will lead to serious questions about political influence and transparency. Finally, Plaintiffs should be allowed to plead their case in federal courts, if necessary, to make sure their grievances are heard!" – Arthur Anderson, Elm Grove
"Allowing a rushed process disadvantages many individuals and groups. To honor our history as a democratic nation, we must allow all voices to be heard on equal grounds. Political parties may come or go, but people are here to stay." – Ann Lewandowski, Waunakee
"The GOP 'Justices' on the WI Supreme Court are setting WI back hundreds of years!" – Michael Goodman, Madison
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